The burden of proof in revocation of probate cases, the principles of suspicion and improbability in testamentary cases, and the relevance of motives for making a will.

JUDGMENT

Biswa, J. - This is an appeal on behalf of one Kristo Gopal Nath who was the defendant in a proceeding for revocation of a will alleged to have been executed by a lady of the name of Bhusanmoyee. The will is said to have been executed on 4th January 1928, and the lady died more than a month after, viz. on 7th February 1928. On 9th April 1929, Kristo Gopal, who had been appointed executor of the will, applied for probate and obtained probate in due course. On 23rd April 1930 Bansi Lal Nath, the husband of Bhusanmoyee, applied for revocation of the grant, alleging that he had not had any notice of the proceedings for grant of probate and that the proceedings were consequently "defective in substance". It appears that between the date of the death of the lady and the date of the application for probate, Bansi purported to sell one of the properties which had been disposed of by the will to one Bolai Chand Nath. On 2nd August 1930, Bolai filed an independent application for revocation of the probate. The two revocation cases, which were numbered 26 of 1930 and 29 of 1930 respectively, were heard together and disposed of by the same judgment. The learned District Judge of Hooghly who heard these cases disbelieved Bansi's statement as to his not having been served with notice of the probate proceedings. He definitely found upon the evidence that such notice had been served and in that view, rejected Bansi's application for revocation. As regards Bolai's petition, he held that as Bolai claimed to be a purchaser from the heir-at-law of the testatrix, he was a person interested in the estate of the deceased, and consequently entitled to citation, and that as no citation had been issued on him, he was entitled to have the will proved again in solemn form in his presence. He accordingly allowed the application. Against this order, there was an appeal preferred to this Court, being appeal from original decree No. 70 of 1931. The judgment of this Court will be found at pages 8 to 11 of the paper book in the present appeal. The learned Judges overruled the decision of the learned District Judge. They were of opinion that Bolai was not a person entitled to citation and that the proceedings for the grant of probate could not therefore be regarded as defective in substance, merely because he had not been cited. The reason for so holding was that it had not been shown that the applicant for probate, Kristo Gopal, knew at the date of the application that Bolai had purchased the property. Their Lordships however went on to say that there still remained another objection put forward on behalf of Bolai Chand which had not been dealt with by the learned District Judge, namely that the will was not a genuine document. In that view, their Lordships, while setting aside the judgment of the learned District Judge, remanded the case to him for a finding on the question as to the genuineness of the will. Pursuant to this order, the matter has been investigated by another learned District Judge, and the present appeal is directed against his findings on such remand.

2. A few relevant facts may be first set out. One Peary Mohan Nath died on 3rd April 1906, leaving two sons Sasi and Bansi. Sasi had two wives, Basanta Kumari and Tincori. By the first wife he had five sons, viz. Satis, Bejoy, Suren, Naren and Kristo; and by the second wife, he had one son of the name of Nanda. Bansi who was married to Bhusanmoyee, the testatrix in the present case, had no issue, male or female. Peary died leaving a will, by which he purported to bequeath among other properties half share of premises No. 2, Rajendra Nath Mullick Street, to Bansi, and the other half to the five sons of Sasi. Bhusanmoyee, as already stated, was the wife of Bansi, and she had inherited certain properties from her father as her stridhan. Now, one of these properties which Bhusanmoyee purported to dispose of by her will, being the will now in dispute, was also No. 2, Rajendra Nath Mullick Str